Wednesday, April 01, 2015

ANA conference: surveys

What Do Consumers Think? Using Online Surveys To Demonstrate
Implied Claims

David G. Mallen, Co-Chair, Advertising Disputes, Loeb &
Loeb LLP: NAD now forum of choice for many ad challenges, especially since the
standard of proof is different for implied claims. Survey not required but may
be useful.

Kelsey Joyce, Senior Director, Legal Affairs, T-Mobile USA

We deal with competitive ads all the time.Survey: in 43(a), very helpful; is it worth
spending the money on survey for NAD?Discussed with marketing clients as well as external lawyers/survey
expert.Timing: if this is an ad we
really want out of the market—and they all are!—we might not want to take the
time to do a survey in order to get the challenge started.

Hal L. Poret, Senior Vice President, ORC International:
possible to put together a survey with 2 weeks’ notice, which can be important
w/NAD.Difference between online and
mall survey may allow you to supply a rebuttal survey in short time.

Mallen: what’s candidate for online survey and needs mall
intercept?

Poret: what’s the ad and how is it being shown? Online
survey may have very small screen.Could
be desktop/laptop.Even tablet/mobile
phone, though you want to stop that if you can. Can it be fairly presented on
computer screen?TV ad w/small print, or
graphics/charts that might be harder to read, think carefully about whether
showing it on a computer screen would be challenged.

People also move quickly through unsupervised online
surveys; want to get through it.Human
interviewer: social pressure to respond; interviewer takes down answers for
them = longer, more detailed, thorough answers. If you need people to speak in
their own words, online may be more difficult.

You don’t always need a human interviewer—majority of NAD
cases allow online; advertisers are often trying to go up to the line between
true and false, and thus you almost always need a closed-ended question, and
online surveys are ideal for closed-ended questions.

Q: “Nobody knows you’re a dog”—is that an issue?

Poret: it’s not to me; that’s how marketing research works
these days. We work with large online panels that recruit lots of people and
work to comply with standards. We have techniques to know who we’re inviting—DOB,
gender, etc. to know who’s taking the survey.

Q: controls?

Poret: in some ways online surveys lend themselves to what
you want as a control—often the most effective thing is altering the original
ad to clarify something or make it true. Digital alteration is often most
desirable, and presenting it online makes sense.

Joyce: NAD Case No. 5686, T-Mobile challenged Sprint’s
campaign for Unlimited My Way monthly service plans. Challenges: Ads w/specific
scenarios depicting how consumers can save money imply that consumers will save. Guaranteed Unlimited For Life
confuses consumers about whether “for life” applied to the $80 monthly fee or
the unlimited talk, text, and data.“Guaranteed
for life and only from Sprint” implied that only Spring had unlimited talk,
text, and data. Considered not doing a survey because it seemed misleading on
its face. We thought consumers would take away message that the price was part
of the fee.Decided to survey because
(1) wanted backup, (2) were challenging another Sprint ad that they thought
needed a survey, so taking the time was a nonissue.

Poret: control was clear cut because the issue was
combination of “for life” with $80 in close proximity.Control: unlimited for life, eliminating $80.Challenge: didn’t show entire webpage, just
ad banner. But NAD was satisfied with explanation that nothing else on the page
clarified the offer and that this was a standalone ad.

Mallen: issue is net impression, but net impression of what?
You may sometimes have to test an entire webpage.When would that be?

Poret: other content possibly right above or below that
bears on that.Headline, graph, and then
a paragraph of text.

Joyce: we captured the entire page so we could show how the
test and control were displayed.Control: “only Sprint delivers unlimited for life,” without the
$80.The control ad is an ad that we can
live with in the marketplace at the end of the day. Create a blueprint for
Sprint to fix what we think is the deception.

Poret: NAD skepticism about closed ended questions makes it
really, really important to have a good control that shows that closed ended
questions on the control didn’t produce the deceptive answer. “Based on the ad,
what is guaranteed for life?” Please be as detailed and specific as possible.”
After other filter questions, including whether the ad communicated anything
about a guarantee for life.NAD will
want that.

Test group: 34.5% said guaranteed $80/life when asked the
intro broad questions “what did this ad communicate?” 5.5% in the control group
said the same thing. Net 29%. Didn’t even need the closed-ended questions.If you did, 57%/9%, net 48%.NAD accepted the survey evidence.

Joyce: other challenged ads were tougher.$83/year offer depended on buying one
particular phone, iPhone 4. Disclaimer was at the bottom but we thought it wasn’t
clear; offer was “our most popular free smartphone”—but that wasn’t the most
popular phone, smartphone, free phone, or iPhone even at Sprint: it was the
most popular free smartphone at
Sprint.

Poret: problem was not that something needed to be removed,
but that something needed to be added: “when you choose an Apple iPhone 4” was
control.Here we needed closed-ended
questions much more because it wasn’t the kind of ambiguity people would
resolve on their own.Online survey
works well here because you need the closed-ended questions.55% in test said that the savings would apply
to any phone; went down to 18% with control ad—helped convince NAD that the
survey was reliable.

Joyce: we’re more willing to run a pilot survey before the
NAD, because that’s not discoverable. But we do think about discoverability
even at the NAD; just because we’re not litigating now doesn’t mean we won’t be
soon, especially when we’re an advertiser defending the claim.Follow-on consumer class action lawsuit is
often an issue.

I need a control ad that we can live with if we won in the
marketplace.We absolutely every time we
challenge an ad, we think about how this will impact our own advertising.

Poret: Different perspective because it’s not his role to
design Sprint’s advertising for them, and there’s no magic answer to the question
of how it should be. I’m trying to create something that will allow me to test
whether my questions are producing answer X when I know from this ad that they
shouldn’t answer X. I have to be satisfied that a reasonable person shouldn’t
come away from the control thinking the offer applies to any phone instead of a
still confusing version, so I know what I see is just noise.

Q: what about TV ads?

Poret: that would go to what’s in the ad.I do such surveys frequently, mainly where
there are strong takeaways. Sometimes important info is on the screen in the ad
that I worry about someone seeing in an online survey.Maps/charts/graphs/legents/mouseprint. Don’t
want to risk people can’t see that in certain scenarios.

Go to court: you don’t know what judge you’re getting,
whereas NAD knows me and probably the other survey expert—familiar with expert
battles.

Joyce: some judges will accept any survey, while others will
never accept one.

Creative Commons/disclaimer

Text on this blog is licensed under a Creative Commons Attribution 2.5 License. Pictures and works quoted may be subject to other parties' copyrights.
I speak for myself. On this blog, I do not and cannot speak for Georgetown Law, the Organization for Transformative Works and/or AO3.